COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bray and Bumgardner 

Argued at Chesapeake, Virginia 

JONATHAN STEPHEN O'MARA 

 

v. Record No. 0992-99-1 

 

COMMONWEALTH OF VIRGINIA OPINION BY 

 JUDGE RICHARD S. BRAY 

RICHARD J. ELLIOTT OCTOBER 3, 2000 

v. Record No. 0997-99-1 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Frederick B. Lowe, Judge 

 Kevin E. Martingayle (Stallings & Richardson, 

P.C., on briefs), for Jonathan Stephen 

O'Mara. 

 James O. Broccoletti (Zoby & Broccoletti, on 

brief), for Richard J. Elliott. 

 H. Elizabeth Shaffer, Assistant Attorney 

General; John H. McLees, Jr., Senior 

Assistant Attorney General (Mark L. Earley, 

Attorney General, on briefs), for appellee. 

 Pursuant to the terms of a plea agreement, Jonathan O'Mara 

pled guilty to "Attempted Cross Burning" and "Conspiracy to 

Commit a Felony," violations of Code §§ 18.2-423 and 18.2-22, 

respectively, expressly reserving the right to appeal a prior 

order of the trial court which denied his challenge to the 

constitutionality of Code § 18.2-423. In a separate proceeding, 

Richard J. Elliott, codefendant with O'Mara, was convicted by a 
jury for attempted cross burning, after joining with defendant 

O'Mara in the unsuccessful challenge to the constitutionality of 

Code § 18.2-423 before the trial court.1

 Accordingly, both O'Mara and Elliott (defendants) maintain 

on appeal "that the code section is unconstitutional as 

violative of the free speech and expression protections" 

guaranteed by both the United States and Virginia Constitutions. 

Joining the two appeals for resolution by this Court, we affirm 

the respective convictions. 

I. 

 The substantive facts are uncontroverted. On the evening 

of May 2, 1998, defendants, together with "approximately fifteen 

individuals," were "consuming alcohol" at the Virginia Beach 

home of David Targee. When defendant Elliott expressed 

unspecified "complaint[s] . . . about his neighbor," James 

Jubilee, and his desire to "'get back' at him," someone 

"suggested that they burn a cross in [Jubilee's] yard." In 

response, Targee and defendants immediately constructed a crude 

cross in Targee's garage and proceeded in Targee's truck to the 

Jubilee home. Elliott "handed the cross" to defendant O'Mara, 

who erected and ignited it on Jubilee's property, and the three 

 

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1

 Although Judge Lowe presided at the trials of both O'Mara 

and Elliott, defendants' constitutional challenges were decided 

by Judge Alan E. Rosenblatt, following an extensive hearing and 

related argument and memoranda of law. 
returned to Targee's residence. The respective records do not 

clearly specify Jubilee's race. 

 Jubilee later discovered the "partially burned cross" and 

notified police, resulting in the subject prosecutions for 

violations of Code § 18.2-423 and the attendant conspiracy. 

II. 

 Code § 18.2-423 provides: 

It shall be unlawful for any person or 

persons, with the intent of intimidating any 

person or group of persons, to burn, or 

cause to be burned, a cross on the property 

of another, a highway or other public place. 

Any person who shall violate any provision 

of this section shall be guilty of a Class 6 

felony. 

 Any such burning of a cross shall be 

prima facie evidence of an intent to 

intimidate a person or group of persons. 

Defendants contend that the statute impermissibly infringes upon 

expressive conduct, speech protected by the First and Fourteenth 

Amendments to the Constitution of the United States and Article 

I, § 12 of the Virginia Constitution, and, therefore, is 

"plainly unconstitutional."2

 "'In assessing the constitutionality of a statute . . . 

[t]he burden is on the challenger to prove the alleged 

constitutional defect.'" Woolfolk v. Commonwealth, 18 Va. App. 

 

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2

 "[L]itigants may challenge a statute on first amendment 

grounds even when their own speech is unprotected." Coleman v. 

City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42 

(1988) (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). 
840, 848, 447 S.E.2d 530, 534 (1994) (quoting Perkins v. 

Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991)). 

"Every act of the legislature is presumed to 

be constitutional, and the Constitution is 

to be given a liberal construction so as to 

sustain the enactment in question, if 

practicable." Bosang v. Iron Belt Bldg. & 

Loan Ass'n, 96 Va. 119, 123, 30 S.E. 440, 

441 (1898). "When the constitutionality of 

an act is challenged, a heavy burden of 

proof is thrust upon the party making the 

challenge. All laws are presumed to be 

constitutional and this presumption is one 

of the strongest known to the law." 

Harrison v. Day, 200 Va. 764, 770, 107 

S.E.2d 594, 598 (1959). 

Moses v. Commonwealth, 27 Va. App. 293, 298-99, 498 S.E.2d 451, 

454 (1998). 

 The First Amendment declares, "Congress shall make no law 

respecting an establishment of religion, or prohibiting the free 

exercise thereof; or abridging the freedom of speech, or of the 

press; or the right of the people peaceably to assemble, and to 

petition the government for a redress of grievances." The 

Fourteenth Amendment prohibits state action in violation of the 

First Amendment. 

 Similarly, Article I, § 12 of the Virginia Constitution 

establishes: 

That the freedoms of speech and of the press 

are among the great bulwarks of liberty, and 

can never be restrained except by despotic 

governments; that any citizen may freely 

speak, write, and publish his sentiments on 

all subjects, being responsible for the 

abuse of that right; that the General 

Assembly shall not pass any law abridging 

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the freedom of speech or of the press, nor 

the right of the people peaceably to 

assemble, and to petition the government for 

the redress of grievances. 

"Our courts have consistently held that the protections afforded 

under the Virginia Constitution are co-extensive with those in 

the United States Constitution." Bennefield v. Commonwealth, 21 

Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996). 

 Although "[t]he First Amendment literally forbids the 

abridgement only of 'speech,'" the Supreme Court has "long 

recognized that its protection does not end at the spoken or 

written word." Texas v. Johnson, 491 U.S. 397, 404 (1989). 

"[C]onduct may be 'sufficiently imbued with elements of 

communication to fall within the scope of the First and 

Fourteenth Amendments.'" Id. (quoting Spence v. Washington, 418 

U.S. 405, 409 (1974)). In identifying expressive conduct, the 

Court must determine "whether '[a]n intent to convey a 

particularized message was present, and [whether] the likelihood 

was great that the message would be understood by those who 

viewed it.'" Id. (alterations in original) (quoting Spence, 418 

U.S. at 410-11). If so, a proscription of such activity by 

government "because of disapproval of the ideas expressed" is 

"content based" suppression of free speech, offensive to the 

First Amendment and "presumptively invalid." R.A.V. v. City of 

St. Paul, 505 U.S. 377, 382 (1992). 

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 However, "our society . . . has permitted restrictions upon 

the content of speech in a few limited areas, which are 'of such 

slight social value as a step to truth that any benefit that may 

be derived from them is clearly outweighed by the social 

interest in order and morality.'" Id. at 382-83 (quoting 

Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). Thus, 

First Amendment protection "does not include a freedom to 

disregard these traditional limitations," thereby allowing 

government to regulate obscenity, defamation, "fighting words," 

id. at 383 (citing Chaplinsky, 315 U.S. at 572), and threats of 

violence. See id. at 383, 388 (citing Watts v. United States, 

394 U.S. 705, 707 (1969)); see also In re: Steven S., 31 Cal. 

Rptr. 2d 644, 647 (Ct. App. 1994) (holding that threats and 

fighting words are "remove[d] . . . from the scope of the First 

Amendment"); Florida v. T.B.D., 656 So. 2d 479, 480-81 (Fla. 

1995), cert. denied, 516 U.S. 1145 (1996) (concluding that 

threats of violence and fighting words are proscribable because 

government has "valid interest" in protecting citizens both from 

fear of violence and violence). 

 The "'true threat'" doctrine articulated by the Supreme 

Court in Watts permits punishment of actual speech or expressive 

conduct "when a reasonable person would foresee that the threat 

would be interpreted as a serious expression of intention to 

inflict bodily harm." In re: Steven S., 31 Cal. Rptr. 2d at 

647 (citing Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir. 

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1990)). Similarly, the Court's "fighting words doctrine" 

expressed in Chaplinsky removes the shield of the First 

Amendment from "statements 'which by their very utterance 

inflict injury or tend to incite an immediate breach of the 

peace.'" Id. (quoting Chaplinsky, 315 U.S. at 572); see Cohen 

v. California, 403 U.S. 15, 20 (1971) (describing fighting words 

as expressions likely to provoke a violent reaction when 

directed to another). 

 Here, the provisions of Code § 18.2-423 specifically 

prohibit the burning of a cross "on the property of another, a 

highway or other public place," "with the intent of intimidating 

any person or group of persons." Historically, a flaming cross 

is "inextricably linked . . . to sudden and precipitous violence 

– lynchings, shootings, whippings, mutilations, and 

home-burnings," a "connection . . . [with] forthcoming violence 

[that] is clear and direct." T.B.D., 656 So. 2d at 481. Hence, 

"a burning cross conveys ideas capable of eliciting powerful 

responses from those engaging in the conduct and those receiving 

the message." State v. Ramsey, 430 S.E.2d 511, 514 (S.C. 1992). 

 Manifestly, the pernicious message of such conduct, a clear 

and direct expression of an intention to do one harm, 

constitutes a true threat envisioned by Watts, irrespective of 

racial, religious, ethnic or like characteristics peculiar to 

the victim. Moreover, the attendant fear and intimidation 

subjects the victim to an immediate and calculated injury that 

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invites a breach of the peace, fighting words within the 

intendment of Chaplinsky. Thus, although such expressive 

conduct doubtless constitutes speech, the prohibition of which 

unavoidably implicates content, the message is beyond the 

protection of the First Amendment and appropriately subject to 

proscription by government. 

 Defendants' reliance upon Brandenburg v. Ohio, 395 U.S. 444 

(1969), to support the contention that Code § 18.2-423 

unconstitutionally prohibits "merely intimidating someone," at 

once ignores the well-established symbolism of the burning cross 

and misapplies Brandenburg. Brandenburg addressed a challenge 

to the constitutionality of Ohio's "Criminal Syndicalism 

statute," which proscribed, inter alia, the "'advocacy . . . 

[of] the duty, necessity, or propriety of crime, sabotage, 

violence or unlawful methods of terrorism as a means of 

accomplishing industrial or political reform.'" Id. at 444-45. 

Thus, the Brandenburg Court was concerned with the propriety of 

governmental restrictions on the "advocacy of the use of force 

or of law violation" in the context of a reform movement, an 

issue unrelated to the vile and malevolent expression 

contemplated by Code § 18.2-423. Id. at 447. Accordingly, the 

Brandenburg admonishment that states may "forbid or proscribe 

[such] advocacy" only if "directed to inciting or producing 

imminent lawless action and . . . likely to incite or produce 

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such action" does not similarly delimit proscribable threats and 

fighting words. Id.

 Defendants' assertion that R.A.V. v. St. Paul "makes it 

clear . . . § 18.2-423 is unconstitutional" is, likewise, 

without merit. R.A.V. examined the constitutionality of a St. 

Paul, Minnesota ordinance, which provided, in pertinent part, 

Whoever places on public or private property 

a symbol, object, appellation, 

characterization or graffiti, including, but 

not limited to, a burning cross . . . which 

one knows or has reasonable grounds to know 

arouses anger, alarm or resentment in others 

on the basis of race, color, creed, religion 

or gender commits disorderly conduct and 

shall be guilty of a misdemeanor. 

R.A.V., 505 U.S. at 380 (citing Minn. Legis. Code § 292.02 

(1990)). Unlike Code § 18.2-423, which proscribes cross 

burnings with the intent to intimidate anyone, the St. Paul 

ordinance prohibited such "speech solely on the basis of the 

subjects the speech addresses," race, color, creed, religion or 

gender. R.A.V., 505 U.S. at 381. 

 In declaring the enactment unconstitutional, the Supreme 

Court accepted the "authoritative statement" by the Minnesota 

Supreme Court "that the ordinance reaches only those expressions 

that constitute 'fighting words,'"3 id. at 381, and reaffirmed 

the doctrine that "areas of speech can, consistently with the 

 3

 In overruling defendants' constitutional challenges in the 

instant prosecutions, Judge Rosenblatt also determined that Code 

§ 18.2-243 regulated fighting words. 

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First Amendment, be regulated because of their constitutionally 

proscribable content – (obscenity, defamation, [threats, 

fighting words] etc.)." Id. at 383 (emphasis in original). 

However, the Court cautioned that such "categories of speech 

[are not] entirely invisible to the Constitution" and cannot "be 

made the vehicles for content discrimination unrelated to their 

distinctively proscribable content." Id. at 383-84. Thus, when 

"St. Paul . . . proscribed fighting words of whatever manner 

that communicates messages of racial, gender or religious 

intolerance," the city impermissibly engaged in "[s]electivity 

[which] creates the possibility that [it] is seeking to handicap 

the expression of particular ideas." Id. at 394 (emphasis 

added); see In re: Steven S., 31 Cal. Rptr. 2d at 649 ("speech 

and expressive conduct may be regulated [but] such regulation 

may not discriminate within that category on the basis of 

content"); T.B.D., 656 So. 2d at 481 (such regulation may not 

"play[] favorites"). 

 In contrast, Code § 18.2-423 regulates, without favor or 

exception, conduct, which, despite elements of expression and 

content, is unprotected by the First Amendment.4

 

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4

 Post-R.A.V. decisions of other jurisdictions cited by 

defendant in support of a different result involve statutes 

substantially dissimilar from Code § 18.2-423. See Pinette v. 

Capitol Square Review and Advisory Bd., 874 F.Supp. 791 (S.D. 

Ohio 1994) (statute established permit requirements to conduct 

public assembly); State v. Shelton, 629 A.2d 753 (Md. 1993) 

(statute proscribed cross burning to protect property owners 

from unwanted fires and safeguard community from fires 
 Finally, defendant challenges Code § 18.2-423, first, as 

overbroad, regulating both protected and unprotected speech, 

and, secondly, as underinclusive, ignoring other modes of 

proscribable speech. However, overbreadth assumes 

constitutional dimension only when "'there [is] a realistic 

danger that the statute . . . will significantly compromise 

recognized First Amendment protections of parties not before the 

court.'" Parker v. Commonwealth, 24 Va. App. 681, 690, 485 

S.E.2d 150, 154-55 (1997) (quoting Members of City Council of 

City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 

800-01 (1984)). The prohibition of Code § 18.2-423 is expressly 

limited to a person or persons burning a cross with the specific 

intent to intimidate another, a threat and fighting words 

unworthy of First Amendment guarantees. Further, 

underinclusiveness is condemned by R.A.V. only if the result is 

content discrimination. See R.A.V., 505 U.S. at 387. Code 

§ 18.2-423 criminalizes a long recognized, particularly virulent 

 

generally); State v. Vawter, 642 A.2d 349 (N.J. 1994) (statute 

proscribed messages based upon race, color, creed or religion); 

State v. Talley, 858 P.2d 217 (Wash. 1993) (statute proscribed 

certain conduct related to the race, color, religion, ancestry, 

natural origin, or mental, physical or sensory handicap of 

another). 

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In contrast, jurisdictions examining the constitutionality 

of statutes more akin to Code § 18.2-423 are in accord with our 

conclusion. See In re: Steven S., 31 Cal. Rptr. 2d 644 

(statute proscribed cross-burning intended to terrorize owner or 

occupant); T.B.D., 656 So. 2d 479 (statute proscribed burning of 

cross on property of another without permission). 
and incendiary mode of proscribable expressive conduct, a 

prohibition free of content discrimination. 

 We, therefore, conclude that Code § 18.2-423 suffers from 

none of the several unconstitutional infirmities advanced by 

defendants. The statute targets only expressive conduct 

undertaken with the intent to intimidate another, conduct 

clearly proscribable both as fighting words and a threat of 

violence. The statute does not discriminate in its prohibition 

and is neither overbroad nor underinclusive. 

 Accordingly, we affirm the convictions. 

 Affirmed.

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